The MeidasTouch Podcast - Trump’s INCOMPETENCE Causes SUDDEN LOSS of Appeal

Episode Date: January 17, 2024

The full DC Circuit Court of Appeals will not review the order turning over Donald Trump’s twitter data to Special Counsel Jack Smith’s team and the conservative judges are pointing to Trump’s own failures as to why the issue was moot. Visit https://SmileActives.com/meidas to get this exclusive offer! Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown Lights On with Jessica Denson: https://www.meidastouch.com/tag/lights-on-with-jessica-denson On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Uncovered: https://www.meidastouch.com/tag/maga-uncovered Learn more about your ad choices. Visit megaphone.fm/adchoices

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Circuit Court of Appeals, and Donald Trump potentially could have prevented this court loss had he and his lawyers made the appropriate challenge to special counsel Jack Smith's criminal investigatory steps. Let me explain what just happened. So what the D.C. Circuit Court of Appeals ruled on Tuesday was that they would not be reviewing en banc a three-judge D.C. Court of Appeals panel order affirming a district court, the lower court's decision, turning over Donald Trump's Twitter data to special counsel Jack Smith's team. The procedural history of this has been well documented and discussed here on the Midas Touch Network. But just to recap it for you, in January of 2023, special counsel Jack Smith sent a subpoena and for information to Twitter, then controlled by Elon Musk and since renamed to X for whatever reason, demanding Donald Trump's Twitter data.

Now, why would special counsel Jack Smith want that if everything is public that's on Twitter? Because that's not the case. As you know, there could be direct messages and other metadata, data kind of embedded in the data itself, which would tell us things like which posts were made from Donald Trump's phone, which posts were made from the phones of his aides like Dan Scavino. So we could determine, was it Donald Trump who was the one posting the threats against Pence? The answer to that is yes. And who was posting the other messages? So special counsel Jack Smith went through that process. Twitter,

controlled by Elon Musk, was refusing to turn over records and documents and the metadata that was requested. And then in February, after a hearing, the federal judge issued contempt sanctions against Twitter, against Elon Musk, in the amount of $350,000. That was the Washington DC district court judge who ordered sanctions in the amount of $350,000 and contempt sanctions against Elon Musk. The documents and data was then turned over to special counsel Jack Smith, an appeal followed by Twitter or X. And then the Washington DC Circuit Court of Appeals panel affirmed, agreed with what the district court ordered, turning these records over to special counsel Jack Smith and affirming the contempt sanctions against Elon Musk.

But during that process, when Donald Trump learned about what was happening, Trump had the option and ability to at least make an assertion of executive privilege. And Donald Trump did not do that. Ultimately, had Donald Trump made that assertion of executive privilege, there could have been, I suppose, a sort of balancing of interests to take place to determine whether that assertion of executive privilege is valid to block turning over these Twitter records and this kind of metadata, direct messages and things like that. Ultimately, had Trump asserted executive privilege, he was going to lose because we've been covering the executive privilege doctrine here.

And you now know that former presidents really can't assert validly executive privilege. And even if they could assert it, if there was a compelling government interest, that compelling government interest overcomes the assertion of executive privilege when there's a criminal investigation like this and there's a compelling interest. But one of the things here that the conservative justices on the full DC Circuit Court of Appeals all basically said is they thought that perhaps what the judge should have done, the district court judge, I believe it was Judge Beryl Howell, should have done was not basically agree to turn over these records right away to special counsel Jack Smith's team.

There should have been at least an analysis conducted on the issue of executive privilege about whether or not to accept or reject these arguments in the first place. But what the D.C. Circuit Court of Appeals here basically says, though, is that Trump was so incompetent that even when Trump was aware that this had finally happened and Trump got noticed that this was taking place, Trump never even tried to assert executive privilege in the first place. And so that moots everything. So therefore, even the conservative justices on the D.C. Circuit Court of Appeals are saying that we really can't even weigh in about whether there should be what's called an unbank hearing in the first place because these issues are now moot because of Donald Trump's own behavior. Although these conservative justices said, we may have liked to have granted what's called an en banc hearing.

Don't worry, I'll explain what en banc is in just a minute. It's spelled E-N space B-A-N-C. It's Latin. I'll explain what it means in just a moment. But the D.C. Circuit of Appeals says, well, we can't hear it anyway. And here's what they say. They go, the options at this juncture are limited. This is coming from the conservative justices in this order. Once informed of the search, they say President Trump could have intervened to protect claims of executive privilege, but did not. And so these issues are not properly before the en banc court. Nonetheless,

executive privilege is vital to the energetic and independent exercise of the president's article to authority and to the separation of powers is what this D.C. Circuit Court of Appeals en banc conservative justices have to say here. Are you self-conscious about your smile due to stains? Are your teeth aging you? Popular food and drinks are known to stain teeth. Beverages like coffee, tea, and wine stain them over time. So what can you do to brighten your smile?

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special buy one, get one free offer with auto delivery plus free shipping and handling. That's smileactives.com slash Midas. S-M-I-L-E-A-C-T-I-V-E-S dot com slash Midas. M-E-I-D-A-S. Terms and conditions apply. See site for details. So just what you know like an en banc is, think about it like this. The first level is a district court makes a decision. Then you appeal to a circuit court of appeals in the federal system.

In this case, the D.C. Circuit Court of Appeals supervises the D.C. District Court. So D.C. Circuit Court of Appeals, it's a three-judge panel that then hears the appeal on what a district court does. And then after a three-judge panel makes a ruling, in this case, the ruling was to affirm, to agree with what the district court did in making sure these records get turned over to special counsel Jack Smith. Then you can have this other step before going to the United States Supreme Court, if you want to, which is called a request for an en banc hearing or petition, an en banc panel. And that's saying, look, these three judges ruled this way as part of this panel, but I want the entire DC Circuit Court of Appeals judges, everyone who's a court of appeals judge for everybody to weigh in because this is an extraordinary situation. So please hear this. So with this order that I'm talking about

now, we didn't even get to the stage though, where an en banc hearing even took place. At en banc hearing, there could be an oral arguments or obviously written briefings, but even an oral argument before a full panel. So all of the judges who have ever been appointed and currently preside in the DC Circuit Court of Appeals would hear it. But in this order, it is just denying even holding that hearing in the first place because the issues are moot because Donald Trump never even asserted executive privilege in the first instance when he became aware that this was going on.

So in other words, there was a waiver and that this issue was just entirely moot. But the conservative justices are saying here that this could have been an issue had the proper steps been followed that could have gone before an en banc hearing. And then ultimately a decision could be rendered by all of the D.C. Circuit Court of Appeals justices or judges, but that is not what's going to happen. So here, because of the steps not being followed and the issues are moot, and special counsel Jack Smith's team has all of this information right now anyway. And here's what's stated. Upon consideration of appellant's petition

for rehearing en banc, the response thereto, the amicus curiae brief filed by Electronic Frontier Foundation in support of a rehearing en banc, and the absence of a request by any member of the court for a vote, it is ordered that the petition be denied per curia, meaning it's like an unsigned and it becomes the full decision of the court. But there are these conservative justices, Rao, Henderson, Katzis, and Walker, while they respect the denial of en banc, they gave a statement basically about

had the procedures maybe been followed differently by Trump and had this procedural posture been different, they may have granted an en banc hearing of this and may have ruled differently than what the three-judge Circuit Court of Appeals panel has ruled. I think this is an interesting ruling to kind of analyze as well in the context of what will the D.C. Circuit Court of Appeals do when the three-judge panel that heard Donald Trump's absolute immunity argument rejects Donald Trump's claim of absolute immunity in the D.C., a criminal case against Donald Trump for trying to overthrow the results of the 2020 election. Will they want to hear that en banc?

Do they think that raises novel issues regarding the separation of powers and roles of the executive such that they want to hear it the same way had the procedures been followed, they want to hear it here. I just tend to think that the law regarding absolute presidential immunity and the arguments being made by Trump's lawyers about SEAL Team 6 being able to kill political opponents and you would still have absolute presidential immunity, are so far fetched, combined with the jurisdictional threshold issues in the Washington, D.C. federal criminal case against Donald Trump regarding that 1989 Supreme Court case we've been talking about here called Midland Asphalt, which casts a great deal of doubt that Trump was even allowed to take

this interlocutory appeal in the first place to have an appeal even heard on the issue of absolute presidential immunity before there is a conviction, before there is a final rule in the district court proceeding. So that is all going to come to the forefront very soon. But anyway, another loss for Donald Trump. I guess even technically, this was a case involving the sanctions against Twitter or X. It's a loss for Trump because Trump's information was turned over. Trump didn't follow the appropriate steps if he wanted to challenge that. But ultimately, even if Trump did challenge it, as I read this order, they're just saying at least deliberation should have been spent by the district court judge to analyze the issues of

executive privilege in the first place. They're not saying Trump has it, and almost certainly Trump did not have it. But here, the panel, the full panel of conservative justices, at least, and not the other justices, but that group I told you about was saying, you should have paused district court judge to at least assess and analyze the issue of executive privilege, even if ultimately you found it didn't exist. But then ultimately when Trump was alerted of these proceedings, he still did not file the appropriate paperwork. So there's nothing we could do about that now. It's everything you need to know right there. I'm Ben Mycelis. This is the Midas Touch Network. Hit subscribe. Let's get to 2 million subscribers by the end of this

month. I think we can get there together. Thank you so much for watching this and have a great day. Hey, Midas Mighty. Love this report? Continue the conversation by following us on Instagram at Midas Touch to keep up with the most important news of the day. What are you waiting for? Follow us now.